Thursday, December 09, 2004

Senator Cornyn vs. the Times

Two major newspapers have recently published editorials in favor of the filibuster, as used against Bush's judicial nominees. Senator John Cornyn has written letters in response to each one. Neither paper published the letters. Nor has anyone else published them, to my knowledge.

The Republicans see the filibuster as an annoying obstacle. But it is actually one of the checks and balances that the founders, who worried greatly about concentration of power, built into our system of government. It is also, right now, the main means by which the 48 percent of Americans who voted for John Kerry can influence federal policy. People who call themselves conservatives should find a way of achieving their goals without declaring war on one of the oldest traditions in American democracy.

Senator Cornyn's response:

November 29, 2004
Letter to the Editor:

I read with great surprise Sunday’s editorial praising the filibuster as a worthy obstructionist tactic in the United States Senate [Mr. Smith Goes Under the Gavel, November 28, 2004]. After all, it wasn’t long ago that the Times advocated just the opposite.

On January 1, 1995, the Times editorialized that it was “Time to Retire the Filibuster,” describing the tactic as “the tool of the sore loser” and “an archaic rule that frustrates democracy and serves no useful purpose.” Have times changed – or has the Times changed?

But beyond the contradictory statements, Sunday’s editorial also misreads history. In more than two centuries of Senate tradition, whenever a judicial nominee received the support of a majority of Senators, that nominee was confirmed. None have been blocked by a filibuster — until now. The current use of the filibusters is as unprecedented as it is wrong. The Senate Democratic leadership have already conceded this – indeed, they have boasted about their “unprecedented” tactics.

The filibuster is not sacrosanct. In fact, there are dozens of laws on the books today that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a President’s judicial nominees.

The Times cheered previous attempts at limiting the use of filibusters. Why, then, the change of tune?

John Cornyn
United States Senator

Then the Los Angeles Times published this op-ed by law professors Michael Gerhardt and Erwin Chemerinsky, in which they claim that "[t]he GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate."

Senator Cornyn's response:

December 6, 2004
Letter to the Editor:

An op-ed in Sunday’s Times by two law professors, Erwin Chemerinsky and Michael Gerhardt, praised the use of filibusters to prevent the confirmation of federal judges, and criticized efforts to reform its unprecedented use against nominees [“Senate's 'Nuclear Option'”]. Their own academic writings, however, contradict those views.

These two professors have previously expressed opposite views on the subject. In 2000, Professor Gerhardt published a book critical of supermajority requirements to confirm judges, stating that such rules “would be more likely to frustrate rather than facilitate the making of meritorious appointments” and are “hard to reconcile” with the Constitution, which “required a simple majority for confirmations to balance the demands of relatively efficient staffing of the government.”

Likewise, Professor Chemerinsky has previously written that the filibuster rules can be changed by a majority vote – the very tactic that he now derides as a “nuclear” option. In a 1997 Stanford Law Review article, the professor wrote that the filibuster rule “is unconstitutional,” and that “a majority of this Senate could eliminate the filibuster if a majority wished to do so.”

Throughout two centuries of Senate tradition, whenever a judicial nominee receives the support of a majority of Senators, that nominee is confirmed. None have ever been blocked by a filibuster — until now. The Senate Democratic leadership has already conceded this – indeed, they have boasted about their “unprecedented” tactics to impose supermajority requirements on judicial nominees.

The filibuster is not sacrosanct. In fact, there are dozens of laws on the books today that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a President’s judicial nominees.

Chemerinsky and Gerhardt praised the use of filibusters to prevent the confirmation of federal judges and criticized efforts to reform its unprecedented use against nominees. Their own academic writings, however, contradict those views. In 2000, Gerhardt published a book critical of super-majority requirements to confirm judges, stating that such rules "would be more likely to frustrate rather than facilitate the making of meritorious appointments" and are "hard to reconcile" with the Constitution. Likewise, Chemerinsky has previously written that the filibuster rules can be changed by a majority vote — the very tactic that he now derides as a "nuclear" option. In a 1997 Stanford Law Review article, he wrote that the filibuster rule "is unconstitutional" and that "a majority of this Senate could eliminate the filibuster if a majority wished to do so."

The filibuster is not sacrosanct. There are dozens of laws on the books that prohibit filibusters on a variety of measures. Senate Republicans want to restore Senate tradition by ensuring that filibusters cannot be used where they were never intended: against a president's judicial nominees.

9 Comments:

Hypocrisy all around. The Republicans stonewalled Clinton nominees for years, and apparantly thought it was good. Now that the Democrats are doing the same back, it's suddenly bad according to the Republicans. The Democrats complained when the Republicans did it, but now do the same thing. The op/ed pieces opposed the fillibuster when Republicans were doing it during the Clinton years, support it when Democrats are doing it in the Bush years.

I'm quite glad we've had the same Supreme Court line up for so long. What's going to happen next year or shortly thereafter when Bush sends up someone to replace Renquist or O'Connor?

Senator Cornyn lost me with the dozens of laws on the books today that prohibit filibusters on a variety of measures.Is it the Senate's own procedural rules he is referring to? If so, why do he call them laws?

"Doc said ...Hypocrisy all around. Republicans stonewalled Clinton nominees for years, and apparantly thought it was good."

The problem that Doc has and the Democrats have is that the Republicans had the majority when they were stonewalling Clinton's nominees. This is crucial. The Republicans did not filibuster Clinton's appointees. They held them up in committee or they voted them down. This is not what the Democrats are now doing but would do if they had the majority.

But the Republicans are asking the Democrats to apply a far more lenient substantive standard to their nominees than they applied to Clinton's. Mainstream nominees like Elena Kagan got shot down then, while extremists like Leon Holmes get confirmed now.

"The problem that Doc has and the Democrats have is that the Republicans had the majority when they were stonewalling Clinton's nominees. This is crucial. The Republicans did not filibuster Clinton's appointees. They held them up in committee or they voted them down. This is not what the Democrats are now doing but would do if they had the majority."

WRONG. It was widely accepted that all of Clinton's held nominees could have gotten a majority if they were put up to a vote (the combination of dems and some repubs would easily meet 50 in each case). The GOP permitted one Senator to hold a Judicial Nominee --- thus, stopping a vote. There is no difference in effect between the present filibusters, and the prior system of anonymous holds. Both prevented nominees who, IF put to a vote, would have gotten a majority from being confirmed. If a nominee could have been defeated on a floor vote, there would be no need, at all, for the hold system. It would be much better, from both a political standpoint and a real standpoint, to defeat a nominee on the floor than to just hold them anonymously. So, you are wrong.